Is Religious Liberty Being Ignored?

In part 1 of this two-part series, NC Family president John Rustin talks with Travis Weber, director of the Center for Religious Liberty at Family Research Council, about how the current state of religious liberty in our nation is threatening the constructs of the U.S. Constitution.

INTRODUCTION: Thanks for joining us this week for Family Policy Matters. Our guest today is Travis Weber, Director of the Center for Religious Liberty at the Family Research Council in Washington, DC. We’re excited to have Travis on the show today, as we are going to be discussing the current status of religious liberty in our nation, and why the very constructs of the United States Constitution are being threatened. We will talk about a recent decision by the U.S. Supreme Court to refuse to hear a case concerning the religious rights of pharmacists, and although you may not have heard about this case at all until today, Travis believes the High Court’s refusal to hear this case is an ominous sign for the future of religious liberty in America. And in fact, that’s exactly how one of our nation’s Supreme Court justices characterized it in the dissent to the court’s decision in this case.

JOHN RUSTIN: Travis, we appreciate so much what you do and what Family Research Council does, and this issue of religious liberty is such a critical matter that’s facing our nation today. As we begin, please give our listeners some background information about the Stormans vs. Wiesman case, whose is involved, what questions were at stake, and how did the lower court rule initially in this case before it arrived at the U.S. Supreme Court?

TRAVIS WEBER: Sure. This involves a family that owns a pharmacy in Washington state. This has been a business of theirs for some time. They do all the things that pharmacies typically do, dispense medication, provide and serve their neighborhood customers, and it was really sort of one of a typical local family business that had operated for a long time without really any issues. Then Washington state came along and imposed regulations on the pharmacies of that state requiring them to dispense certain drugs that destroy human embryos and basically end life, thus violating the consciences of people who believe that’s occurring and would be forced to play a part in that scenario by dispensing those drugs, and this included the Stormans. So they obviously had a problem with this. And, the regulations do not permit anyone to opt out on conscience grounds and say look you can go get your drugs down the street. This is a real problem and so they sued claiming a violation of the Free Exercise clause. The federal district court ruled in their favor, the federal appeals court reversed and ruled against them. Unfortunately, the Supreme Court has rejected the case, declined to take it and even hear it, thus the Ninth Circuit’s appeals court ruling stands against the Stormans and it’s really unfortunate because now they’re being put in a spot where they’re going to either be forced to violate their consciences or suffer some business here and be found in violation of the regulations.

JOHN RUSTIN: The State of Washington, as I understand it, allows pharmacists to make referrals for a number of other reasons more secular in nature. Why are pharmacists not given the same discretion with regard to their moral or ethical beliefs?

TRAVIS WEBER: Ultimately we don’t know. Now to clarify, the individual pharmacists are permitted to opt out, right so it permits an individual to opt out, but it requires every pharmacy to dispense the medication. So ultimately this doesn’t matter in the case of the Stormans. You have a family who owns the pharmacy who has a problem. There’s going to be a problem for them And so the very justification permitted to individual pharmacists with objection to opt out, should apply, needs to apply to a family like the Stormans, and yet it doesn’t. So they have no opt out here, however individuals have an opt out. They’re stuck. You know even at the same time these regulations permit opt outs for all sorts of other reasons. So, you know, if in those cases you can have an opt out and the state can conceivably see that the customer can still get what they need, why not here? There’s really no good reason for that. It’s unfortunate that the Supreme Court did not see that the very intentional targeting of religion, religious objections is occurring in this case and you know they should have taken the opportunity to correct that.

JOHN RUSTIN: I agree. And one of the things that is especially troubling about this case is that it does not involve, for example, a lone pharmacy that’s serving a rural population that would otherwise not have reasonable access to these kinds of drugs if that one pharmacy chose not to dispense them. Instead, the Stormans’ pharmacy is located, as I understand it, within a five mile radius of at least 30 other pharmacies. What was the lower court’s rationale behind its ruling in the Stormans’ case that referring customers to another nearby pharmacy is essentially unethical?

TRAVIS WEBER: This is a good point you bring up because often what we hear in these cases is the word “access.” It’s about access to this, access to that, when it comes to a conflict between a religious claim and a law providing access. The claim of access is highlighted and it’s as if nothing can get in the way of that. Here that’s not an issue right? You can go to numerous pharmacies within a few miles, get what you need. So, what’s the reason for the law, there’s really no good reason for the law. And ultimately, the federal district court agreed with that, they saw that that was the case and held there was a violation of the Free Exercise clause. The federal appeals court reversed, ultimately you know ruling that the law was not a Free Exercise violation because it was neutral and generally applicable, which is the standard under the Supreme Court’s Smith decision in which you know in which cases there’s no Free Exercise violation. The problem is in actuality this is not a neutral or generally applicable law. It’s targeting religious belief like the law issued in the Lakumi case in which the dissenters, the Supreme Court dissenting justices recognized that law, though on its face appeared apparently neutral, was enacted to target a specific instance, a specific factual scenario and penalize people in that scenario. In that case it was animal slaughter for religious reasons. In this case it’s religious objections from being forced to dispense certain drugs. Washington state clearly was aiming at people like the Stormans in this case. And so, the appeals court is wrong to just gloss over that fact and justify this as somehow neutral and generally applicable, but that’s what they tried to do.

JOHN RUSTIN: Travis, in your opinion is there a reasonable solution available to the state of Washington that would balance the conscience rights of the Stormans and the ability of customers to obtain prescription drugs? I know that in North Carolina, for example, our lawmakers have included pharmacists in our state-level Healthcare Conscience Protection Act.

TRAVIS WEBER: Yes, I think this is an easy case to solve, you permit a pharmacy to not dispense this medication if it’s against the conscience of the owners, and you know there’s gonna be others who dispense it and people can get what they need at those. It’s a win for both sides and I don’t see why there has to be such a problem here.

JOHN RUSTIN: Travis, the U.S. Supreme Court often refuses to hear cases, and of course they refused to hear the Stormans’ case. Why is the high court’s refusal to take this particular case an “ominous sign” for religious liberty in our nation?

TRAVIS WEBER: I think it’s ominous because it’s so clearly a religious liberty violation and yet the court just has failed to address it. You have the court very recently unanimously addressing other religious liberty problems, which are quite similar. A Muslim prisoner who wanted to grow a beard, the Supreme Court unanimously held that a law very similar to the Religious Freedom Restoration Act standard would protect that individual, that inmate, because the government regulations permitted beard exemptions for other reasons they need to permit them for religious reasons. They couldn’t discriminate against religion in that case. This case is very similar to that. This is very troubling because you have what Justice Thomas pointed out occurring in his dissent from the recent Texas abortion case. You have a Supreme Court that’s increasingly deciding cases on political or ideological grounds. Deciding them based on the religious claim at issue, the nature of the religious claim at issue, not neutrally applying the law. This court gets into dangerous territory when it starts to do that. It exposes itself as a political body; it discredits itself; and it only endangers the nature of pluralism and the ability of our democracy to function going forward when it exposes itself as deciding cases along those grounds, but that’s what you have happening. This is not good by any standard of a fair and impartial judiciary and yet it’s increasingly occurring more and more.

JOHN RUSTIN: It does seem like this is just another example where business owners across our nation are being told that they have to choose between their business and their conscience. What do you believe is driving this hostile environment in our nation toward religious liberty, particularly when it happens in the context of small business?

TRAVIS WEBER: We really seen the conflicts arising in the case of any matter pertaining to sexuality. Primarily abortion and LGBT issues, right, those are the issues that get the news coverage. And why is that? I would submit that it’s because of an agenda driving hard for approval of radical individual’s sexual autonomy, including abortion and various sexual same-sex conduct, being approved and thus legitimized in law. And if that’s the case there can be no dissent, there can be no exemptions, and any opposition to that must be stomped out. And that’s what you see occurring, right? So if that’s what’s occurring, it makes sense that this ideological agenda is driving from the other side. It’s evidence of the agenda’s existence and power. And this where religious liberty gets the news. Religious liberty laws, the same law and the same standard protects a number of other claims and scenarios: Native American claims, minority religion claims revolving controlled substances, Amish-related claims, those don’t get the same coverage. They’re barely in the news. Nobody even knows they’re occurring and courts are ruling on them. It’s the same standard, religious liberty standard that we’ve advocated for, yet they don’t get the coverage but it’s because the conflicting agenda. So, people must recognize the existence of the philosophical battle underneath the law, and it’s ultimately the result of a divided and fractured society in which society is worshiping self, worshiping different ideals, that’s driving a conflict and a wide-spread fracture.

JOHN RUSTIN: We’ve certainly seen a lot of that in North Carolina related to House Bill 2. Travis, what can American business owners do when they’re faced with the kind of choice the Stormans face, as well as the pharmacists, the photographer, the baker, that we hear about across the nation, whose religious rights to decide how they operate their businesses consistent with their religious beliefs are infringed upon by state laws?

TRAVIS WEBER: They need to just take a stand. When you have a conviction and you know that conviction is right, you take a stand. You don’t back down. This doesn’t mean being unnecessarily antagonistic, or stating your public claim in unnecessarily antagonistic manner, but it does mean not backing down. And I think you know those in the public eye need to know they’re standing for truth and when their conscience would be violated to not back down, not compromise that. Along with that to publicize their cases. Let us know. Let other folks know what is happening to them. Seek legal help if it’s needed, and let their elected officials know they need help, they need protection. We’re not really hearing from a lot of business owners right now who are saying ‘Hey, I’m being affected, I need protection in x, y and z ways regarding my beliefs.’ Now part of that is these things are still developing, but part of it is people self-sensor and they remain silent. This goes back to kind of your previous question too which I didn’t completely address, but the reason business are one of the groups being affected is in this battle between you know different views of philosophical views regarding sexuality and traditional Christian beliefs, it’s playing out in non-discrimination laws. Those affect the public square and the marketplace. And who’s affected by that? Well business is. You have non-profits and churches who are affected by other regulation, but businesses are affected by non-discrimination laws. They’re in the marketplace and that’s why we’re hearing about those types of conflicts at these at this point. Those folks need to let their voices be heard. We shouldn’t self-sensor or be silent just out of fear of offense because it’s going to come and people need to we need to know about it and band together.

JOHN RUSTIN: Those are great words. If there are business owners out there who are listening to the program, if they do confront this type of situation, to let their voices be heard, to take that stand, to seek legal representation. There are a lot of great groups out there who will do that representation on a pro bono basis and are really looking for cases that are representative of the types of challenges that the Stormans and others are facing across our nation.

You’ve been listening to Part 1 of a discussion on the current status of religious liberty with Travis Weber, Director of the Center for Religious Liberty at the Family Research Council in Washington, D.C. I encourage you to tune into “Family Policy Matters” next week for Part 2 of this discussion.